Investigation and prosecution of sexual crimes: review

Introduction

In contrast to most other types of reported crimes in Scotland, which have steadily fallen since 2007-08, sexual crimes recorded by the police have increased each consecutive year. Sexual crimes are at the highest level since 1971 ^[1] and increased by 5% from 10,273 charges in 2015-16 to 10,822 in 2016-17. ^[2]

In 2016-17 rape and attempted rape accounted for 17% of sexual crimes, representing an increase of 66% between 2010-11 and 2016-17. ^[3]

In 2015 ^[4] we reported that sexual crimes constituted more than 50% of the overall Crown Office and Procurator Fiscal Service’s ( COPFS) High Court workload; it now constitutes 75%. ^[5]

A combination of reasons may explain increased reporting:

• A wider definition of rape and attempted rape introduced by the 2009 Act;

• Greater confidence on the part of those abused that their accounts will be listened to by the police following the successful outcome of cases, including historic crimes;

• Media coverage that has led to the identification of further victims who previously may not have reported crimes to the police;

• More pro-active policing involving investigations with multiple victims/offenders of sexual and domestic abuse offences which span a number of years through the creation of the Domestic Abuse and Rape Taskforces; and

• An increase in online child sexual abuse, which includes grooming/exploitation.

While there has been an increase in the reporting of such crimes, the high rate of attrition (the process whereby cases drop out of the criminal justice system at any point) and the low conviction rate, ^[6] particularly for offences of rape and attempted rape, remain a source of concern. In 2015-16 the conviction rate for all sexual crimes was 72%, but only 48% ^[7] for rape and attempted rape. Accounts of “secondary victimisation” experienced as a result of the trauma of the investigation, prosecution and court room processes, is a feature also associated with crimes of sexual violence.

The investigation and prosecution of sexual crimes pose particular problems for prosecutors.

• The requirement for corroboration to prove charges, which is a distinctive feature of Scots criminal law, impacts most acutely on offences that occur in private, a feature of many sexual crimes. This is a significant hurdle for the prosecution to overcome. ^[8]

• Contrary to common perception, many victims of such crimes do not report the offence at the time it occurs. In 2014-15, 39% of recorded rapes were reported one year or more after the alleged incident took place. ^[9] Delays in reporting can impact negatively in two ways:
  • It may result in a loss of evidence and/or lead to inconsistencies in the account of the crime; and
  • For many members of the public, who make up juries, delays in reporting appear counter-intuitive behaviour and may present an obstacle to them accepting a victim’s account of what happened.

Due to the nature of the offence and its impact on victims, disengagement of victims during the investigation or any court proceedings is not uncommon. ^[10] This is likely to be exacerbated where:

• the accused is known to the victim and the breach of trust and betrayal compounds the abuse and adds to trauma and distress;

• the accused targets vulnerable individuals, including children, people with learning disabilities, or mental health problems who are the least equipped to participate in an adversarial criminal justice system.

Aim

The aim of this inspection was to review and assess the effectiveness COPFS investigation and prosecution of High Court sexual crimes having particular regard to:

• The effectiveness of procedures, processes and systems in ensuring cases are progressed expeditiously;

• The quality and thoroughness of the investigation; and

• The individual needs of the victims.

In doing so we examined:

• The operation of the specialist sexual crime teams and the National Sexual Crimes Unit ( NSCU);

• The investigative processes and procedures;

• The use of pre-petition investigation;

• Communication and contact with victims;

• Whether sensitive, personal information is obtained in accordance with COPFS policy; and

• Offending by children.

Objectives/Outcomes

We seek to:

• Identify any weaknesses in the procedures, processes and systems aimed at progressing cases of High Court sexual crimes and make recommendations for improvement;

• Identify any barriers/impediments to delivering a quality product, and make recommendations for improvement; and

• Identify good practice.

Scope of Review

The focus of this inspection is the investigation and prosecution of sexual crimes prosecuted in the High Court of Scotland. The review does not include any assessment of advocacy or the presentation of cases at court.

While the review is concerned with investigation and prosecution of High Court sexual crimes by COPFS, it is impossible to review the prosecution of such crimes in isolation. The role of the police, courts and judiciary all contribute to the effectiveness of the system and the experience encountered by the victim.

While our recommendations are directed to COPFS, our findings in some areas go beyond the remit of COPFS recognising that system-wide solutions are required to improve the experience of victims.

Methodology

We adopted a mixed-method approach which combined the following evidence‑gathering methods:

Interviews with personnel, organisations and parties involved with such offences, including:

• Key personnel involved in the investigation and preparation of serious sexual crime cases in COPFS, including Senior Legal Managers ( SLM), Crown Counsel ( CC), business managers, case preparers, Victim Information and Advice ( VIA) and administrative support

• Police Scotland, Scottish Courts and Tribunals Service ( SCTS) and Scottish Government Justice Directorate

• Representatives from voluntary sector groups and principal support agencies for victims including Archway Glasgow, Barnardo’s, Children 1st, Children and Families (City of Edinburgh Council), Rape Crisis Scotland ( RCS), Scottish Children’s Reporter Administration ( SCRA), Scottish Government, Scottish Women’s Aid ( SWA) and Victim Support Scotland ( VSS)

Document review: A review of COPFS departmental protocols, policies and guidance, management information, current statistics, trends and profile of cases and academic research/reports.

Victim’s Voice: We met with 16 victims of sexual crimes who had personal experience of the prosecution service and the criminal justice system (victim focus groups). Ten of their cases had proceeded to trial with varying outcomes, two concluded with a plea of guilty, there was a finding of guilty in five and findings of not guilty or not proven in three. Four cases are still proceeding and in the remaining two cases, it was determined that there was insufficient evidence for a prosecution. We are grateful to Rape Crisis Scotland for facilitating these meetings. All quotes from the meetings have been anonymised.

File reviews: We conducted three separate case reviews.

• We examined the outcome of all cases where the accused was placed on petition in 2014-15 where at least one charge was sexual, and where some High Court preparation had taken place. ^[11] This included cases where proceedings were discontinued or charges were conjoined ^[12] into another case.

• We examined a significant sample ^[13] of the 567 cases where pre-petition investigation was instructed by the National Sexual Crimes Unit ( NSCU) in 2014-15 (Pre-Petition review). The review considered decision-making, the focus and outcomes of pre-petition investigation, timescales and contact with victims.

• We examined a significant sample of cases from April 2016 where the accused was indicted in the High Court for a sexual crime. ^[14] (Indicted cases review). The review considered the decision-making, the effectiveness of the investigation and contact and communication with victims.